130Hindu/orig.
The British Charge (Chilton) to the Acting Secretary of State
Sir: Under instructions from my Government, I have the honour to bring to your notice the effect on certain British subjects, natives of India resident in the United States, chiefly in the State of California, of the decision rendered by the United States Supreme Court on the 19th of February last in the case of Bhagat Singh Thind.78 The Court ruled that a Hindu, of whatever caste, of full Indian blood, was ineligible for United States citizenship.
In certain States, notably California, aliens who are ineligible for citizenship are unable under the local law to possess real property, and it is fully realised by His Majesty’s Government that British Indians resident in these States will thus in future be unable legally to acquire title to real property. I need hardly add that His Majesty’s Government have of course no desire to impugn the right of the United States Government to determine what persons are eligible for United States citizenship.
His Majesty’s Government desire me, however, to point out that a serious and altogether unwarranted hardship will be imposed on a large number of British subjects if the Supreme Court decision is immediately put into effect, and, still more, if it is given retroactive force. His Majesty’s Government are advised that real property legally acquired by British Indians in California, (in which State the majority of the British subjects affected are situated), prior to [Page 253] the passage of the first California Alien Land Law on May 19th, 1913, will not be liable to confiscation in consequence of the Supreme Court decision, inasmuch as its owners were not ineligible for citizenship when they acquired the property. His Majesty’s Government trust that the United States Government will concur in this view. On the other hand, it would appear that real property acquired since that date is technically subject to escheat as from the date on which the Supreme Court ruling becomes effective, so my present representations are especially directed towards the attainment of some alleviation for British Indian property owners in this latter category.
I have further the honour to point out that there are certain British treaty rights which affect this question. In Article V of the Convention between the United States and Great Britain of March 2nd, 1899,79 it is provided that most favoured nation treatment may be applied in all that concerns the disposal of real property. The most favoured nation in this case would appear to be Colombia; by the treaty between the United States and Colombia of December 12th, 1846,80 it is provided, (Article XII,):—”The citizens of each of the contracting parties shall have power to dispose of their personal goods or real estate within the jurisdiction of the other by sale, donation, testament or otherwise”. His Majesty’s Government feel that although, as regards California, under the recent Supreme Court ruling British Indians have technically no title to retain real property acquired since May 19th, 1913, they should certainly obtain the benefit of Article V of the Convention of March 2nd, 1899, by being permitted a reasonable period of exemption from the operation of the Supreme Court decision within which to dispose privately of their property. His Majesty’s Government consider that even apart from these treaty stipulations the grant of such a period of respite would be only reasonable, and that it should be accorded to all British Indians who own such property (whether or not escheat proceedings have already been instituted against them), in all cases where the property was acquired in good faith and legally according to the laws in force at the time of its acquisition. His Majesty’s Government suggest that this period of respite should amount to two years (thus coinciding with the period specified in Section 7 of the Alien Land Law of California of 1920) and that the Supreme Court decision should be held operative only as from January 1st, 1925.
In communicating to you the above considerations, I would also draw your attention to another aspect of the matter involving hardship to British Indian subjects who have come to the United States [Page 254] to study. Here again I refer more especially to the conditions obtaining in California. In that State British Indian subjects who are students are affected by the Supreme Court decision owing to the fact that they are classified as non-resident if they are ineligible to citizenship and are thus obliged to pay the comparatively heavy fees demanded of non-resident students. While His Majesty’s Government are aware that intervention in a question of this kind by the Federal Government may be a matter of some difficulty and delicacy, yet they feel sure that if the matter was put to the authorities responsible for determining students’ fees in California and elsewhere through your kind intermediary, they would appreciate the hardship involved to British Indian students if they are suddenly to be called upon to pay greatly increased dues. It would seem not unreasonable that the students already attending courses should be allowed to retain their present status as resident students until their conclusion, and thus not be penalised by being compelled at once to pay the fees required from non-resident students.
His Majesty’s Government suggest, as a fair and practical solution of these difficulties, that the date on which the Supreme Court ruling of February 19th, 1923, shall be deemed to become effective, shall be January 1st, 1925. Such a solution will involve a triple alleviation of the hardship caused by the Supreme Court ruling to British Indian residents in this country,—hardship which His Majesty’s Government feel sure the United States Government would be reluctant to inflict. In the first place, British Indians who have acquired real property lawfully and in good faith will have the opportunity, to which by treaty they are entitled, to dispose of it without incurring the undeserved total loss which would attend escheat proceedings. In the second place, British Indians who have contemplated immigration to this country with the intention of acquiring real property, and those who may be already in this country and may have possessed such intentions, will have ample warning of the legal disability which would attend such a project. In the third place, British Indian students now resident in the United States, and more especially in California, will be enabled to finish their courses of study under the same conditions in which they commenced them, and due warning will be afforded to British Indians intending to come to study in this country, and more especially in California, that they will, after January 1st, 1925, be liable to the increased fees required from non-resident students.
His Majesty’s Government feel sure that it is not the intention of the United States Government that British subjects who have, in a bona fide manner and in violation of no Federal or State law, acquired real property in this country, should, through no fault of their own, and owing to the operation of a decision which they could [Page 255] not possibly have anticipated, be penalised by confiscation to the extent of the entire value of their property or be obliged to suffer a financial burden which might easily entail the abandonment of their studies. His Majesty’s Government have the greater confidence in appealing to the United States Government for a reasonable and equitable solution of this question such as I have suggested above, because His Majesty’s Government understand that it is the policy of the United States Government to resist any measures taken in foreign countries, which would involve confiscation, without due warning, of American property. In particular, I would refer in this connection to the communiqué issued by the Department of State to the press in November last,81 in which, with reference to the American interests in Mexico, the following passage occurred:—“We have said that, when a nation has established laws under which investments have been lawfully made, contracts entered into and property rights acquired by citizens of other jurisdictions, it is an essential condition of international intercourse that there shall be no resort to confiscation and repudiation”. In view of this attitude in the matter of American property and interests in foreign countries, I feel sure that the United States Government will not be averse to affording, in the case of British Indians in the United States and more especially in California, a similar measure of protection for their property and interests. Moreover, the fact that many of the British Indians in question obtained their United States naturalization while serving as United States soldiers during the war will, I feel sure, render the competent authorities of the United States Government the more sympathetic to their case and the more favourably disposed to ensure that equitable treatment shall be afforded to them in this matter.
In conclusion I have the honour to point out that inasmuch as in several cases in California the Attorney General has already begun proceedings for the escheat of the property of British Indians in execution of the Supreme Court ruling, the matter is one of considerable urgency if an equitable settlement is to be reached before these unfortunate British Indians are called upon to incur the grave financial loss and hardship inseparable from the confiscation of their property. The case of British Indian students in California is also urgent as I understand that as far as the University of California is concerned, it is intended to exact non-resident fees from British Indians at the beginning of the approaching semester.
In these circumstances I have the honour, under instructions from my Government, to ask you to be so good as to draw the [Page 256] urgent attention of the competent authorities to these questions in order that they may take into immediate consideration the solution I have suggested above, and I trust that having regard to the treaty rights involved and in the interests of equity and justice, they may see their way to concur in the proposals put forward by His Majesty’s Government and to take action without delay with a view to their execution.
I have [etc.]
- 261 U. S. 204.↩
- Malloy, Treaties, 1776–1909, vol. i, p. 774.↩
- Ibid., p. 302.↩
- See telegram no. 171, Nov. 20, 1922, to the Chargé in Mexico, Foreign Relations, 1922, vol. ii, p. 703.↩